Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
June 5, 1980
MARK WHITE
Attorney General
Honorable Bob Bullock Opinion No. m-19 1
Comptroller, Ptilic Accounts
L.B.J. Building Re: Authority of the Texas
Austin, Texas 767ll Prosecutors Coordinatiw Council
to contract with an attorney to
assist the district attorney to
prepare and try a case
Dear Mr. Bullock:
The Texas Prosecutors Coordinating Council has presented you with a
voucher for payment of legal services by a private attorney. You inform us
that the Council employed an attorney to assist the dBtrict attorney for Bell
County in preparing and trying a criminal case. This assistance was
rendered in response to a request by the district attorney of Bell County.
For purposes of this opinion, we assume, without deciding, that these facts
are true and have been properly verified. You ask whether you may legally
pay this claim. See Norris v. Bullock, 580 S.W.2d 812 (Tex. l979); Bullock v.
Calvert, 480 S.W. 367 (Tex. 1972); Attorney General Opinion 0-1-m
Funds appropriated to the Prosecutors Coordinating Council by the
Legislature out of the Criminal Justice Planning Fund were vetoed by the
governor. General Appropriations Act, Acts 1979, 66th Legislature, chapter
843 at 2445. The Council is operating on federal funds appropriated by the
General Appropriations Act “for any purpose for which the Federal grant
allocation, aid or payment was made. . . in carrying out the Council’s
duties.” General Appropriations Act at 2465.
The appropriation to the Council is subject to the limitations set forth
in Article V of the General Appropriations Act. It is the intent of the
Legislature to restrict and limit by these provisions the conditions under
which appropriated funds might be spent. The section V riders apply to
federal funds appropriated by the General Appropriations Act. Section 42 of
Article V provides as follows:
Section 42. OUTSIDE LEGAL COUNSEL. Prior
to expenditure of funds for retaining outside legal
counsel, agencies and departments covered by this
Act shall request the Attorney General to perform
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Honorable Bob Bullock - Page Two (NW-19 1 I
such services. If the Attorney General cannot provide such
services, he shall so certify to the requesti% agency who may
then utilize appropriated funds to retain outside counseL
Acts 1979, 66th Leg., ch. 843 at 2917. This rider was found to be constitutional in
Attorney General Opinion H-268 (19741 It constitutes a limitation on the appropriation
to the Texas Prosecutors Coordinating Council. None of its funds may be legally spent
by any agency to employ %utside” legal counsel unless the Attorney General has been
requested to perform the needed services and has certified his inability to do so.
Attorney General Opinion H-268 (1974); see also Shepperd v. Alan@ 303 S.W.2d 846
(Tex. Civ. App. -San Antonio 1957, no writ).Attorney General could have assisted
prosecution in district court at request of district attorney but did not have exclusive
power to prosecute election frauds). Since the Prosecutors Coordinating Council has
not made the request nor received the certification required by section 42, you have no
authority to pay the vouchers you inquire about. In light of the application of article
V, section 42, we need not address any other possible legal objections to this claim.
SUMMARY
Before the Texas Prosecutors Coordinating Council may
spend appropriated funds to hire an outside attorney to assist a
district attorney in prosecution of a case, it must request the
Attorneys General to perform the services and receive his
certification that he is unable to do so.
~.- ved&&
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
James Allison
Jon Bible
Susan Garrison
Rick Gilpin
Bruce Youngblood
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